Decision Date: 08/22/95 Archive Date:
08/23/95
DOCKET NO. 93-23 043 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to a special monthly pension based on the need
for regular aid and attendance of another person or on
account of housebound status.
ATTORNEY FOR THE BOARD
Jeffrey J. Schueler, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1948 to March
1952.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his nonservice-connected
disabilities require regular aid and attendance. He
maintains that he has great difficulty walking and that he
has a shunt implanted into his arm for dialysis that
prevents him from doing any kind of work. The veteran also
asserts that he is housebound.
DECISION OF THE BOARD
The Board of Veterans' Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991), has
reviewed and considered all of the evidence and material of
record in the veteran's claims file. Based on its review of
the relevant evidence in this matter, and for the following
reasons and bases, it is the decision of the Board that the
preponderance of the evidence is against the claim of
entitlement to a special monthly pension based on the need
for regular aid and attendance of another person or on
account of housebound status.
FINDINGS OF FACT
1. All available relevant evidence necessary for an
equitable disposition of the veteran's appeal has been
obtained by the regional office.
2. The veteran's nonservice-connected disabilities include
chronic renal failure with hypertension rated at 100 percent
disabling and bronchitis rated at 10 percent disabling.
3. The appellant is not blind, a patient in a nursing home,
or bedridden, and is not shown to be incapable of performing
functions of daily living, including feeding, dressing, and
attending to the needs of nature.
4. The appellant is not substantially confined to his
dwelling or immediate premises by reason of disability.
CONCLUSION OF LAW
The criteria for an increased rate of pension based on the
need for regular aid and attendance or on account of
housebound status are not met. 38 U.S.C.A. §§ 1502, 1521,
5107 (West 1991); 38 C.F.R. §§ 3.103(a), 3.159(a), 3.351,
3.352 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds initially that the appellant's claim is
well-grounded within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991); that is, the claim is not inherently
implausible. The Board also finds that the Department of
Veterans Affairs (VA) has satisfied its statutory obligation
to assist the veteran in the development of facts pertinent
to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R.
§§ 3.103(a), 3.159(a) (1994). On appellate review, the
Board sees no areas in which further development may be
fruitful.
The veteran's nonservice-connected disabilities include
chronic renal failure with hypertension rated at 100 percent
disabling and bronchitis rated at 10 percent disabling. His
combined nonservice-connected rating is 100 percent, and it
has been determined that he is entitled to nonservice-
connected pension.
Increased pension is payable to a veteran by reason of need
for aid and attendance or by reason of being housebound. 38
U.S.C.A. § 1502(b) (West 1991); 38 C.F.R. § 3.351(a)(1)
(1994). The need for aid and attendance means helplessness
or being so nearly helpless as to require the regular aid
and attendance of another person. The criteria set forth in
38 C.F.R. § 3.351(c) (1994) will be applied in determining
whether such need exists. 38 C.F.R. § 3.351(b) (1994).
Pursuant to 38 C.F.R. § 3.351(c), the veteran will be
considered in need of regular aid and attendance if he:
(1) Is blind or so nearly blind as to have corrected visual
acuity of 5/200 or less, in both eyes, or concentric
contraction of the visual field to 5 degrees or less; or
(2) Is a patient in a nursing home because of mental or
physical incapacity; or
(3) Establishes a factual need for aid and attendance under
the criteria set forth in 38 C.F.R. § 3.352(a).
A review of the veteran's claims file fails to show evidence
that the veteran is blind or in a nursing home, or
contentions to that effect. If the veteran is found to be
in need of regular aid and attendance, that finding must,
therefore, be established under the criteria set forth in 38
C.F.R. § 3.352(a) (1994).
The following will be accorded consideration in determining
the need for regular aid and attendance: inability of
claimant to dress or undress himself, or to keep himself
ordinarily clean and presentable; frequent need of
adjustment of any special prosthetic or orthopedic
appliances which by reason of the particular disability
cannot be done without aid (this will not include the
adjustment of appliances which normal persons would be
unable to adjust without aid, such as supports, belts,
lacing at the back, etc.); inability of claimant to feed
himself through loss of coordination of upper extremities or
through extreme weakness; inability to attend to the wants
of nature; or incapacity, physical or mental, which requires
care or assistance on a regular basis to protect the
claimant from hazards or dangers incident to his or her
daily environment. 38 C.F.R. § 3.352(a) (1994).
"Bedridden" will be a proper basis for the determination.
For the purpose of this paragraph "bedridden" will be that
condition which, through its essential character, actually
requires that the claimant remain in bed. The fact that
claimant has voluntarily taken to bed or that a physician
has prescribed rest in bed for the greater or lesser part of
the day to promote convalescence or cure will not suffice.
38 C.F.R. § 3.352(a) (1994).
It is not required that all of the disabling conditions
enumerated in § 3.352(a) be found to exist before a
favorable rating may be made. The particular personal
functions which the veteran is unable to perform should be
considered in connection with his or her condition as a
whole. It is only necessary that the evidence establish
that the veteran is so helpless as to need regular aid and
attendance, not that there be a constant need.
Determinations that the veteran is so helpless, as to be in
need of regular aid and attendance will not be based solely
upon an opinion that the claimant's condition is such as
would require him or her to be in bed. They must be based
on the actual requirement of personal assistance from
others. 38 C.F.R. § 3.352(a) (1994).
The veteran also seeks entitlement to a special monthly
pension based on housebound status. The rate of pension
payable to a veteran who is entitled to pension under 38
U.S.C.A. § 1521 and who is not in need of regular aid and
attendance shall be as prescribed in 38 U.S.C.A. § 1521(e)
if, in addition to having a single permanent disability
rated 100 percent disabling under the Schedule for Rating
Disabilities, the veteran:
(1) Has additional disability or disabilities independently
ratable at 60 percent or more, separate and distinct from
the permanent disability rated as 100 percent disabling and
involving different anatomical segments or bodily systems,
or
(2) Is "permanently housebound" by reason of disability or
disabilities. This requirement is met when the veteran is
substantially confined to his dwelling and the immediate
premises or, if institutionalized, to the ward or clinical
area, and it is reasonably certain that the disability or
disabilities and resultant confinement will continue
throughout his lifetime.
38 C.F.R. § 3.351(d) (1994).
The veteran was hospitalized in November 1991 with diagnoses
of gastrointestinal bleed, renal failure, hypertension, and
probable obstructive uropathy secondary to enlarged
prostate. The examiner reported that the veteran presented
himself to the emergency room and that following treatment
he was discharged to home. It was also noted that the
veteran refused domiciliary housing at that time.
The veteran was hospitalized from February 26 to March 23,
1993, after complaining of shortness of breath and a history
of chronic renal insufficiency. The diagnoses included
chronic renal failure requiring dialysis and congestive
heart failure. Following treatment, the veteran was
discharged and the examiner wrote that the veteran would be
treated on an outpatient basis. One week later the veteran
re-entered the hospital for several days between March 30
and April 2, 1993, with complaints of fever and chills. He
was discharged in stable condition to his home.
In an April 2, 1993, VA Examination for Housebound Status
and Permanent Need for Regular Aid and Attendance, it was
noted that the veteran was at that time hospitalized and was
transported to the place of the examination via ambulance
and accompanied to the examination by the ambulance
attendant. The examiner wrote that the veteran's posture
and general appearance was of an elderly man appearing
chronically ill. In describing the restrictions of each
upper extremity with particular reference to grip, fine
movements, and ability for self feeding, to button clothing,
shave, and attend to the needs of nature, the examiner
indicated no restrictions. In describing the restrictions
of the lower extremity, the examiner wrote that the veteran
had a history of chronic renal failure that was nonstable
requiring hemodialysis three times per week and that
required him to leave his house at least three times per
week. It was also noted that if it got worse he had
swelling in both lower extremities. Regarding ambulation,
the examiner marked that the veteran was able to walk
without assistance of another person for five or six blocks,
and that he did not use aids such as canes, braces, crutches
or a walker for locomotion.
The evidence of record also includes various VA outpatient
treatment records prepared between April and June 1993,
including chest x-rays and outpatient treatment notes
showing treatment in the gastrointestinal clinic and the
infectious disease clinic. An April 1993 VA clinical record
showed a diagnostic impression of bronchitis and noted that
on arrival the veteran was ambulatory.
With respect to the determination of whether the veteran is
considered in need of regular aid and attendance, the
evidence of record simply does not indicate an inability to
accomplish basic daily activities as described at 38 C.F.R.
§ 3.352(a) (1994). The evidence describes a chronically ill
man requiring frequent medical attention, including
outpatient dialysis three times per week, but does not show
that an actual requirement for the personal assistance of
others. The April 1993 VA examination report showed no
evidence that the veteran was unable to dress himself or
keep himself ordinarily clean and presentable, or that there
was any restriction of the upper extremities that prevented
him from feeding himself, or that he was unable to attend to
the wants of nature. The record contains no evidence
indicating that the veteran wore a prosthetic device or that
he required care to protect him from hazards or dangers in
his daily environment.
While the April 1993 VA examiner noted that the veteran was
accompanied to the place of the examination by an ambulance
attendant, the examination was conducted on the last day of
a period of hospitalization after which the veteran was
discharged in stable condition to his home without mention
of any need except follow-on outpatient treatment.
Moreover, the fact that the veteran had to leave his home
for dialysis treatment and was ambulatory paints a picture
of someone who, by definition, is not "bedridden"; the
veteran was simply not required to remain in bed. While the
requirements of § 3.352(a) do not require that all of the
disabling conditions enumerated be found to exist, the
evidence above does not support a finding of even one of the
criteria for regular aid and attendance. Special monthly
pension based on the need for regular aid and attendance of
another person is not warranted.
With respect to the determination as to whether the veteran
is housebound, the August 1993 rating action shows that the
veteran is entitled to a nonservice-connected pension with
nonservice-connected chronic renal failure with hypertension
rated at 100 percent disabling. Since the only other
nonservice-connected disability is bronchitis rated at 10
percent disabling, housebound status cannot be supported
under § 3.351(d)(1). As noted above, the veteran receives
dialysis treatment on an outpatient basis three times per
week, which it is logical to assume requires him to report
for dialysis treatment outside his home. It cannot be said
that the veteran is substantially confined to his dwelling
or the immediate premises and, therefore, the evidence does
not indicate that the veteran is "permanently housebound" by
reason of his disabilities. The Board acknowledges that the
veteran has severe health problems, but his disability has
not intensified to the level contemplated by the relevant
statutes and regulations. The medical data do reveal that
he has maintained substantial ability to take care of most
of the ordinary activities of daily life without the
assistance of another person. The Board has placed
considerable weight on the examination report of April 2,
1993.
ORDER
Entitlement to a special monthly pension based on the need
for regular aid and attendance of another person or on
account of housebound status is denied.
JOHN E. ORMOND, JR.
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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